Who gets your children? Who gets your stuff? What do you need to make it official? You've got questions. We've got this article (as a general reference). Please consult with your own financial professional for more information.
Why you need a will
It's important to have a will so that your family/friends/business associates don’t spend the next decade fighting in court and possibly in person ... with fists. The fights can get even uglier if you have young kids, lots of money and property, or all of the above.
Example of why picking a guardian is so important
If you don’t want your irresponsible brother raising your kids, and you don’t make it clear in your will, and he’s the closest relative your kids have if you die, then the courts will most likely give him your kids. If you want your responsible cousin to be the guardian and put it in your will, then you need to let the court know who you want to raise your minor children.
Who gets your stuff?
You can leave your stuff to anyone you want. A beneficiary can be a family member or members, friends, pets (via a human guardian), strangers, organizations, or institutions. By identifying who gets what, you’ll relieve some of the stress your family will have to face when settling your estate. If not, your heirs will have to make these decisions.
We’re sure your family is incredible, but money can make people weird. Especially since they’re going through a tough time without you around. Isn’t it better for them to be able to blame any decisions they don't agree with on you rather than taking it out on each other? Family feuds are so 19th century. Just ask the Hatfields and McCoys. (Learn more: Inheritors and Beneficiaries)
The only people who cannot get anything are …
The people who serve as witnesses to the signing of the will. Legally, anyone who witnesses the signing of a will can't be named as a beneficiary. So make sure your brother or best friend isn’t a witness, unless you don’t want to give them anything. Then the joke's on them!
The person responsible for making sure everything you want gets done
This is an “executor” because the person has to “execute” everything in your will. Makes sense, right? The person you name as your executor is responsible for paying any debts or taxes on behalf of your estate, marshalling all of the assets of the estate, and making sure that the people who are supposed to inherit your assets actually get them.
Who’s taking care of your children and dependents?
Choosing a guardian is usually the toughest decision to make when creating a will. Who’s going to raise your kids if you die? If you’re married, it’s probably your spouse. If you’re divorced, it’s probably your ex-spouse. If you don’t have a spouse or your ex-spouse isn’t an option, then you’ve got some thinking to do.
Most people have godparents, but that could just be an honorary title you gave someone to make them feel better. It doesn’t mean you want them actually raising your kids. Odds are you already know who you want to serve as guardian, but you have to make it legal. (Learn more: Choosing a Guardian for Minor Children, How to Choose a Guardian)
Who handles the money and assets you leave for your children?
Enter the guardian of the estate, who’s tasked with managing your child’s financial well-being. There may be a significant amount of money involved, especially if you have life insurance, and it’s this person’s duty to always keep your child’s best interest in mind when making financial decisions.
We already established that a court will name a guardian if you don’t. Well, that same guardian will most likely get all the money and assets as well. If you don’t care enough about your children to name a guardian, at least think of those sad, lonely piles of money getting into the wrong hands.
It isn’t easy being an estate guardian, but being fiscally responsible is paramount. Apart from managing the assets, he or she also has to make an inventory of the assets for the court, file annual reports detailing the value, income, investments, and expenses of the estate. (Learn more: Choosing a Guardian of the Estate)
Just because you trust someone to raise your children doesn’t mean you trust them with money
You can choose different people to serve as a “person guardian” and estate guardian. Why?
Let’s say your sister is great with kids but horrible with money. And your brother is great with money but horrible with kids. See, now it’s all starting to make sense.
If you opt for different estate/person guardians for whatever reason, make sure they can collaborate effectively and work together on the child’s behalf. Whenever the person guardian needs funds for the child, he or she needs to hit up the estate guardian for the money.
On paper this makes sense, but you won’t be around to manage the personal dynamics if things go south. So, choose wisely, and let them know beforehand so it’s not a shock. Plus, if you sense any tension, then you can choose different people. (Learn more: Appointing Different People as Guardian of the Person and Guardian of the Estate)
Do you want to use an attorney or write a will online?
Quick and basic: There are a bunch of online legal services that can help you create a basic and official will that covers all the bases (beneficiaries, guardians, and an executor), but it's always best to create it with an attorney.
More involved: If you have complex financial arrangements, such as real estate, overseas assets, elaborate investments, or trusts, then you’re going to need some help. This means working with an attorney or an online service that offers advice from real lawyers.
The best way to find an attorney isn’t much different than finding a good doctor, electrician, or dog walker. Get recommendations from friends, family, or other attorneys. Once you have some options, meet with the prospects, and make sure you get along and approve of his or her working style and skills. And of course, don’t forget the price tag.
If you die with a will
Think of your will as an eager flower that’s not allowed to bloom until a probate court gives it permission. But once it does, it’s a thing of beauty. It’s so beautiful we crafted the next section into a three-act play:
Act 1: Your executor presents the will to a probate court.
Act 2: The probate proceedings can take anywhere from three months to three years, depending on your state’s laws and the complexity of your estate. In short, get comfy. You can’t distribute property, sell assets, or pay off debts until the court grants approval.
Act 3: The court validates the will. Victory! Now the executor can get to work and start handing out assets to the beneficiaries. (Learn more: Understanding Probate)
If you die without a will
The short of it: The court gives your closest surviving relatives everything, including assets and custody over minor children if they are deemed capable of raising the children. (Also known as “succession laws.”) Your estate will still have to go through the probate process, and “intestacy laws” kick in to determine who gets what. (Learn more: Understanding Inheritance Rights)
Your will, your say: What you can put in it
You can create a will as basic or elaborate as you want. If you want to keep it simple, you can split all your money, assets, property, investments, dragons (just making sure you’re still awake) evenly between all your beneficiaries. If you want to make sure some people get more and others get less than more, this is how you make sure your property is given to the people you want the way you want it.
Keep your family in check
When money’s involved, things can get quite heated, even among the happiest of families. We’re sure your family is wonderful, but if you’re concerned about possible disagreements that can drag on for years, a will helps avoid all the drama.
If you’ve got a lot to give, it can get a little complicated
If you have significant property or assets, or particularly elaborate investments or financial arrangements, get help from an attorney to determine the best way to distribute said assets.
The attorney can help identify tax-efficient ways to make sure your beneficiaries are taken care of, which may include establishing a post-death trust (fancy name: “testamentary trust”) or using other financial and legal wizardry he or she learned in law school.
Even basic legal documents should be drafted by an attorney.
Keep your eyes on the prize
It’s a good idea to periodically review beneficiaries to make sure the person or people named are still the ones you want getting the money or property.
Things change over the course of your life — marriage, kids, divorce, cash windfalls, etc. — so it’s a good idea to keep everything current. Even if you’ve already named a beneficiary for certain assets — trusts, retirement plan, insurance policy, or stocks or bonds that are set to transfer upon death — it’s not necessarily set in stone. You’re allowed to change your mind and leave these things to somebody different.
Once you get a will, where should you keep it?
One of the primary reasons the website Everplans.com was created was to make the logistics surrounding death less of a confusing nightmare. Your will can be digitally stored in your Everplan (learn more at everplans.com) and physically stored along with other important estate planning documents in a secure, easy-to-access location. You should share this information with someone you trust so it can be easily found when it’s needed.
Informing people where your will is stored
Wherever you store it, make sure that important people you trust — your spouse, your adult children, your attorney, etc. — know where your will is so they can easily locate and access it if/when they need it. (Learn more: Where to Store a Will)
Enough legal talk, let’s get personal
You’ve been inundated with a lot of information and have made a lot of hard decisions. This is the part where you get to kick back and be yourself without any laws, statutes, or other complicated aspects getting in the way.
It’s called an “ethical will,” which is a terribly cold name for something with so much heart. This is where you get to share your experiences, thoughts, beliefs, life lessons, and most importantly, get the chance to let your family, friends, and anyone else close to you in this world how you feel about them.
The thought of this gives us happy chills and misty eyes, because this is the culmination of all your hard work. Not just in getting a plan together but in life and what you pass on to future generations. We’re fully aware people share so much through social media, but there’s something special about sharing personal thoughts directly to the people you love written directly from your heart. (Learn more: Ethical Will Worksheet)
Things to Consider
- If you have a straightforward estate, you could easily create a will online, but it’s best to get help from an attorney, especially if your finances are complex.
- If you don’t create a will, then it could lead to a lengthy court battle and cause an irreparable rift in your family.
- Once you create a will, periodically check it to make sure all the decisions you made are still what you want.
This article is provided by Everplans — a life and legacy planning company dedicated to transforming the way people get their families organized. For more information, visit: everplans.com
Neither Transamerica nor its agents or representatives may provide tax, investment, or legal advice. Anyone to whom this material is promoted, marketed, or recommended should consult with and rely on their own independent tax and legal advisors and financial professional regarding their particular situation and the concepts presented herein.